A A
B B
DCCC 64/2015
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 64 OF 2015 D
____________
E HKSAR E
v
F F
LEE BING KWAN
G ____________ G
H Before : HH Judge Dufton H
Date : 24 June 2015
I Present: Mr M. Peter Tracy, counsel on fiat, for HKSAR I
Mr SW Lee leading Mr Peter Yu, instructed by Alan Ho &
J Co, for the defendant J
Offences: (1)-(2) Dealing in arms without a licence (無牌經營槍械)
K K
(3) Possession of arms and ammunition without a licence
(無牌管有槍械及彈藥)
L L
M REASONS FOR VERDICT M
N 1. The defendant pleads not guilty to two charges of dealing in N
arms without a licence (charges 1 & 2) and one charge of possession of
O O
arms and ammunition without a licence (charge 3), contrary to sections
P 13 & 14 of the Firearms and Ammunition Ordinance, Chapter 238. P
Q Q
Introduction
R R
2. On the 23 February last year at the Asia Airfreight Terminal
S near the Hong Kong International Airport Customs & Excise officers S
conducting routine cargo clearance of a Federal Express aircraft
T T
discovered a Taser X2 Defender stun gun with 4 cartridges; 10 Taser
U U
V V
2
A A
B B
X26C stun guns each with 6 cartridges and 150 packages each containing
C two Taser X26C cartridges. These were contained in six of eight carton C
boxes addressed to Lee Bing Kwan at 35, G/Floor, Guar Tin Ping Che
D D
Village, Ta Ku Ling in the New Territories.
E E
3. The case was reported to the police. The following day the
F police, including DPC 58777, disguised as Federal Express delivery F
workers conducted a controlled delivery of the eight carton boxes to the
G G
defendant at G/F, No 35 Kat Tin Village, Ping Che, Ta Kwu Ling in the
H New Territories (‘the premises”). After the defendant signed receipt for H
delivery of the eight carton boxes he was arrested by DPC 58777.
I I
J 4. Under caution (and in a later video interview) the defendant J
said that he had received stun guns on two previous occasions for a Mr
K K
Ho and that unexpectedly delivery was made a third time.
L L
5. A search warrant of the premises was then executed and the
M M
premises searched. During the search the police found 17 empty boxes
N for Taser X26C stun guns; 23 empty packages for Taser X26C cartridges N
and some documentation. In the video interview the defendant was asked
O O
about the two previous occasions and the items found in the premises.
P P
Issues
Q Q
6. There is no issue that the Taser X2 Defender stun gun; the 10
R R
Taser X26C stun guns and all the 364 cartridges are arms and
S ammunition for which the defendant had no licence. No objection was S
taken to the admissibility of the oral statement under caution. The
T T
admissibility of the video was however challenged.
U U
V V
3
A A
B B
7. The main issue on charge 3 is whether the defendant was in
C possession, custody or control of the arms and ammunition knowing that C
they were arms and ammunition. In summary the prosecution case, as
D D
opened on charge 3, is that by signing for delivery the defendant took
E possession of the eight carton boxes containing the arms and ammunition E
(see paragraph 2 of the opening). The opening does not however say on
F F
what evidence the prosecution ask the court to draw the inference the
G defendant knew the eight carton boxes contained arms and ammunition. G
H 8. The defence case as put in their closing submission is that H
the defendant never took possession of the arms and ammunition and
I I
further that there is no evidence from the prosecution to show that the
J J
defendant knew the eight carton boxes contained arms and ammunition.
K K
9. The opening does not set out the prosecution case on
L charges 1 & 2 save to say that if the court rules admissible the video L
interview this substantiates charges 1 & 2 (see paragraphs 4 & 7 of the
M M
opening).
N N
10. On a charge of dealing in arms and ammunition the
O O
prosecution must prove that the dealing was by way of trade or business.
P As already noted under caution the defendant said that he had received P
stun guns on two previous occasions for a Mr Ho. In the video interview
Q Q
the defendant was asked about these two occasions and their relationship
R with the empty boxes found in the premises. The main issue is whether R
by way of trade or business the defendant dealt in arms.
S S
11. The defence case as put in their closing submission is that
T T
there is no direct evidence that what the defendant dealt with was actually
U U
V V
4
A A
B B
arms and that there is no evidence capable of showing that the defendant
C had operated a trade or business in dealing with arms and ammunition. C
D Evidence D
E E
12. The prosecution called two witnesses DPC 58777, the
F arresting officer, and DPC 3881, the exhibit officer (referred to as PW3 & F
PW4 in the opening). The evidence of Man Hing Sun (PW5), the owner
G G
of the premises and who produced the tenancy agreements (exhibit P26)
H was read pursuant to section 65B of the Criminal Procedure Ordinance, H
Chapter 221. Also read was the evidence of DSPC 52037 (PW6), who
I I
produced the photographs (exhibit P1); and the evidence of three expert
J witnesses Tam Cheok Ning (PW8); Poon Wai Ming (PW9) and Chan J
Che Wah (PW10).
K K
L
13. Facts have also been admitted pursuant to section 65C of the L
Criminal Procedure Ordinance, Chapter 221 (exhibit P34) including
M M
discovery of the arms and ammunition by the Customs & Excise and that
N the defendant had never held a licence to possess arms and ammunition or N
a dealer’s licence. I will refer to the admitted facts as I review the
O O
evidence.
P P
14. The defendant elected not to give evidence or call witnesses
Q on both the special issue and the general issue. No adverse inference is Q
drawn against the defendant for remaining silent. That is his right. This
R R
proves nothing one way or the other. The prosecution must prove the
S charges beyond reasonable doubt, each charge being considered S
separately.
T T
U U
V V
5
A A
B B
15. Reliance is however placed by the defence on the answer
C under caution and in the video interview that the stun guns were delivered C
unexpectedly and that the defendant had no knowledge stun guns were to
D D
be delivered until the police officer told him the content of the eight
E carton boxes. In reaching my verdict I have considered the reply under E
caution and the content of the video interview, both the inculpatory and
F F
exculpatory parts, in accordance with the decision in R v Sharp (1988) 1
G WLR 7. G
H 16. I remind myself that when drawing inferences from the H
evidence the inference must be a compelling one and the only one that no
I I
reasonable man could fail to draw from the direct facts proved.
J J
17. Admitted in evidence is that the defendant has a clear record.
K K
In ruling on the admissibility of the video interview and in reaching my
L verdict I have directed myself as to good character in accordance with the L
decision in HKSAR v Tang Siu Man [1997-98] 1 HKCFAR 107.
M M
N 18. I have carefully considered all the evidence and the closing N
submission of Mr Lee. Notwithstanding a request from the court for
O O
assistance on various issues because the defendant elected not to give
P evidence Mr Tracy declined to make a closing submission. P
Q Charge 3 Q
R R
19. I will first deal with charge 3. Save for exactly how the eight
S carton boxes were delivered to the defendant on the 24 February 2014 the S
evidence has either not been challenged or has been admitted and can
T T
therefore be briefly summarised.
U U
V V
6
A A
B B
20. The finding by the Customs & Excise on the 23 February
C 2014 at the Asia Airfreight Terminal when conducting routine cargo C
clearance of a Federal Express aircraft of the eight carton boxes
D D
containing the Taser X2 Defender stun gun with 4 cartridges (exhibit P2);
E the 10 Taser X26C stun guns each with 6 cartridges (exhibits P3-P12) and E
the 150 packages each containing two Taser X26C cartridges (exhibit
F F
P14) is admitted (see paragraph 1 of the admitted facts, exhibit P34). For
G ease of reference one of the 150 packages was marked P14A. G
H 21. The case was reported to the police. DPC 3881 (PW4) H
seized the eight carton boxes and their contents (see paragraph 2 of the
I I
admitted facts). DPC 3881 identified each of the eight carton boxes and
J J
their contents with reference to photographs 32-62, exhibit P1.
K
Specifically the Taser X2 Defender stun gun with 4 cartridges and the 10 K
Taser X26C stun guns each with 6 cartridges were found in box 6 shown
L L
in photographs 53-57. The 150 boxes each containing two Taser X26C
M
cartridges were found in boxes 2, 3, 4, 5 & 7 shown in photographs 37- M
43; 47-48; 50-51 and 58-59.
N N
22. The air waybill (exhibit P27), which was attached to box 1
O O
(see photograph 33) together with the corresponding commercial invoice
P (exhibit P28), show that the eight carton boxes were addressed to Lee P
Bing Kwan at 35, G/Floor, Guar Tin Ping Che Village, Ta Ku Ling, New
Q Q
Territories. In the evening the police attempted to deliver the eight carton
R boxes to Lee Bing Kwan at G/F, No 35 Kat Tin Village, Ping Che (“the R
premises”) but were unable to locate him. In cross-examination DPC
S S
58777 agreed that one of his colleagues later telephoned Lee Bing Kwan
T to make an appointment for delivery the next day. T
U U
V V
7
A A
B B
23. The following afternoon at about 3:15 DPC 58777 and two
C colleagues dressed as Federal Express delivery workers went to the C
premises to deliver the eight carton boxes. After alighting from a light
D D
goods vehicle DPC 58777 saw the defendant standing outside the
E premises waving towards them. When DPC 58777 told the defendant E
they had come to deliver goods for a person named Lee Bing Kwan the
F F
defendant said he was Lee Bing Kwan. DPC 58777 then pushed the eight
G carton boxes on a metal cart to a position in front of the premises. G
H 24. The defendant was then asked to show his identity card. H
After checking the identity card and confirming the particulars were the
I I
same as on the delivery record (exhibit P25), which the police had
J J
prepared in advance, DPC 58777 showed the delivery record to the
K
defendant and asked him to check the numbers on the delivery record K
matched with the numbers on the eight carton boxes. After the defendant
L L
confirmed the numbers matched DPC 58777 asked the defendant to sign
M
the delivery record. M
N 25. In cross-examination DPC 58777 disagreed the police N
arrived first and that after the defendant arrived he was asked to go to the
O O
police van to count the eight carton boxes.
P P
26. After the defendant signed the delivery record DPC 58777
Q Q
revealed his police identity and arrested the defendant for dealing in arms
R and ammunition without a licence. Under caution the defendant said; “Ah R
Sir I do not know these eight carton boxes are stun guns. On the last occasion Mr Ho
S told me to receive stun guns for two times. I also told Mr Ho not to deliver stun guns S
here again. It was unexpected that delivery was made again.” DPC 58777 post-
T T
recorded this reply in his note book (exhibit P22).
U U
V V
8
A A
B B
27. I accept the evidence of DPC 58777 as to the circumstances
C he delivered the eight carton boxes. I reject the defence assertion in C
cross-examination that the police arrived before the defendant and that
D D
after the defendant arrived he was asked to go to the police van to count
E the eight boxes. E
F Arms and Ammunition F
G G
28. Notwithstanding the defence were willing to admit the Taser
H X2 Defender stun gun with 4 cartridges; the 10 Taser X26C stun guns H
each with 6 cartridges and the 150 packages each containing two Taser
I I
X26C cartridges are arms and ammunition Mr Tracy elected to read the
J witness statements of three experts together with 12 valuation reports J
(exhibits P31, P38 & P39).
K K
L
29. I have carefully read the reports together with the first L
schedule of the admitted facts. I accept the evidence of the three
M M
witnesses. I am satisfied the Taser X2 Defender stun gun and the 10
N Taser X26C stun guns are electric stunning devices and therefore arms N
within the definition of arms, and that all the 364 cartridges are
O O
ammunition within the definition of ammunition.
P P
Licence
Q Q
30. Admitted in evidence is that the defendant has never held a
R R
licence for possession of arms and ammunition issued under the Firearms
S and Ammunition Ordinance (see paragraph 6.1 of the admitted facts, S
exhibit P34).
T T
U U
V V
9
A A
B B
Possession
C C
31. A person is in possession of arms and ammunition or of any
D documents, keys or other things mentioned in section 24 if they are D
actually in his possession or under his control or are held by some other
E E
person subject to his control or instructions or for him or on his behalf
F (see section 2(2) of the Ordinance). F
G G
32. Section 24(1) of the Ordinance provides that any person who
H is proved to have had in his physical possession (a) anything containing H
arms or ammunition, or both shall, until the contrary is proved, be
I I
presumed to have had the arms or ammunition, or both, as the case may
J be, in his possession. Section 24(2) provides that any person who is J
proved or presumed to have had arms or ammunition, or both, in his
K K
possession shall, until the contrary is proved, be presumed to have known
L the nature of such arms or ammunition, or both, as the case may be. L
M M
33. In my view for the presumptions to apply the prosecution
N must prove the defendant was in possession of the eight carton boxes at N
the time of his arrest. If they do apply then following the decision of the
O O
Court of Appeal in HKSAR v Mohammed Khan Shamim [2013] 3
P HKLRD 469 the presumptions are to be construed as imposing on the P
defendant an evidential burden only.
Q Q
34. Mr Lee submits that the defendant was not in possession of
R R
the eight carton boxes and in support of his submission relies on the
S decision of the Court of Appeal in HKSAR v Mohammed Saleem [2009] 1 S
HKLRD 369 (see paragraphs 28-31 of the closing submission of Mr Lee).
T T
U U
V V
10
A A
B B
35. The facts in Mohammed Saleem are very similar. Customs
C & Excise intercepted a bag at the airport which had arrived by Federal C
Express from India. Inspection of the bag revealed the presence of
D D
Ketamine. Attached to the bag was a label addressed to Mr V Nelson at
E an address in Chungking Mansion. Customs & Excise officers conducted E
a controlled delivery at that address. The appellant answered to the name
F F
of “V Nelson” and produced photographic identification. The appellant
G then signed the delivery form as proof of his receipt of the bag which was G
placed on the floor beside him. When he was about to pick up the bag he
H H
was arrested.
I I
36. A no case submission was made that the prosecution had
J J
fallen short of proving the appellant was in possession of the ketamine
K
there being no sufficient evidence to establish that the appellant ever had K
the custody of or control over the bag containing the ketamine.
L L
37. In ruling there was a case to answer the Recorder stated:
M M
“The fact that the defendant had completed all the
N N
formalities for receipt of the package and was in the act of
O physically moving forward to receive it is, in my view, O
sufficient to bring the parcel within his physical possession for
P the purposes of section 47(l) of the Ordinance” P
Q Q
(The reference to section 47(1) is reference to a similar presumption in
R the Dangerous Drugs Ordinance to that in section 24(1) of the R
Ordinance).
S S
T
38. The Recorder continued: T
U U
V V
11
A A
B “I do not accept that, because the Customs & Excise B
officers prevented him from physically touching the parcel, that
C C
this was capable of breaking the chain. The evidence of Customs
D Officer 9527 was that the Customs & Excise Department D
considered that custody and control passed to the defendant
E upon completion of the delivery form. Indeed, in reliance on that E
belief, they were not prepared to risk the defendant taking
F F
physical custody of the parcel and so the arrest was declared to
prevent that.
G G
H I am satisfied that, on the evidence so far, the defendant H
was in control of the parcel from the time he had satisfied all the
I requirements for delivery. Any issue about whether he had I
actually touched or held the parcel is not capable of severing
J J
that control.”
K K
39. On appeal the first ground of appeal was the Recorder erred
L in law by failing to uphold the submission of no case to answer. The L
Court of Appeal disagreed with the submission of the respondent that the
M M
Recorder was entitled to have concluded possession had been established.
N In rejecting this submission the Court of Appeal said that it was necessary N
for the prosecution to prove that the appellant knowingly had either
O O
physical custody of the ketamine or, alternatively, that it was otherwise
P within his physical control and that he intended, as and when the occasion P
arose, to exercise control over the drugs whether or not by physically
Q Q
handling them.
R R
40. The customs officers having physical possession of the drugs
S S
at all times and were under instructions not to allow the appellant to lay
T so much as a finger on them the Court of Appeal held that the prosecution T
U U
V V
12
A A
B B
had produced no evidence of physical custody of the ketamine or control
C over the ketamine at the stage when the appellant was arrested. C
D 41. The defendant in the present case never took physical D
custody of the eight carton boxes. He was arrested as soon as he signed
E E
the delivery record. In cross-examination DPC 58777 said the defendant
F never touched the eight carton boxes while checking the numbers were F
the same as on the delivery record. The Court of Appeal having rejected
G G
that the signing of the delivery receipt was sufficient to amount to
H possession there are in my view no grounds to distinguish this decision. H
I I
42. I find that the prosecution have failed to prove the defendant
J was in actual possession of the arms and ammunition or that they were J
under his control or held by some other person subject to his control or
K K
instructions or for him or on his behalf. The arms and ammunition were
L throughout in the possession, custody and control of the police officers. L
The presumptions in section 24 do not therefore apply. In the
M M
circumstances it is not necessary for me to go on to consider whether the
N prosecution have proved the defendant knew arms and ammunition were N
to be delivered although I do refer to the defendant’s knowledge when
O O
considering charges 1 & 2. The defendant is acquitted of charge 3.
P P
Charges 1 & 2
Q Q
43. The evidence relating to charges 1 & 2 may also be briefly
R R
summarised. As seen earlier under caution the defendant said that he had
S received stun guns on two previous occasions for a Mr Ho. A search S
warrant was then executed and the premises searched. In the presence of
T T
the defendant DPC 3881 seized five carton boxes and their contents
U U
V V
13
A A
B B
(exhibits P17-P21) and some documentation contained in a DHL
C envelope (exhibits P29 & P30). The location where DPC 3881 seized C
these exhibits is shown in a sketch of the premises (exhibit P24) drawn by
D D
the officer.
E E
44. These five carton boxes were found inside room B and are
F shown together with their contents in photographs 9-22, exhibit P1. F
Inside the carton boxes was packaging material for Taser stun guns
G G
including 17 empty boxes for Taser X26C stun guns and 23 empty
H packages for Taser X26C cartridges. Also found in the carton boxes was H
operating manuals, training DVDs and human targets for Taser stun guns
I I
and some plastic and Styrofoam packaging. For convenience samples of
J J
each carton box were marked as exhibits P17A-P21A. The packaging is
K
the same packaging in which ten of the stun guns and the ammunition K
subject of charge 3 were contained.
L L
45. Inside the DHL envelope (exhibit P29) DPC 3881 found air
M M
waybills (exhibit P29A), commercial invoices (exhibit P29D) and a three
N page handwritten document (exhibit P30). The DHL envelope is marked N
E2 on the sketch and is shown in photographs 4-6. Other items including
O O
knives (marked E1 on the sketch) were found in the living room and
P shown in photographs 24-29. These have not been produced by the P
prosecution.
Q Q
R 46. After the search the defendant was further cautioned about R
dealing in arms and ammunition. The defendant replied he understood
S S
and had nothing further to say. This was also post-recorded as part of
T exhibit P22. The same evening the defendant was interviewed on video T
U U
V V
14
A A
B B
(exhibit P23) about what he had said under caution and the finding of the
C exhibits in the premises. C
D Voir dire D
E E
47. I will first give my reasons for ruling the video interview
F admissible in evidence. The defence objected to the admissibility of the F
interview on the grounds of oppression as particularised in the written
G G
grounds of objection submitted by Mr Lee. The basis of the objections
H was twofold relating to the manner in which the interview was conducted. H
I 48. First the questioning of the defendant after he replied “No” I
when asked if he had anything to say (see counters 59-72) was a clear
J J
indication the defendant did not wish to say anything. Similarly when
K K
asked about items found in the premises the defendant again said he had
L
nothing to say (see counters 1698-1712). The defence submitted the L
further questioning of the defendant undermined his right to silence and
M M
amounted to oppression (see paragraphs 8-11, 13 & 14 of the written
N submission). N
O 49. Second the defence submitted that in breach of Rule II of the O
Rules and Directions for the Questioning of Suspects and the Taking of
P P
Statements the defendant should also have been cautioned in the video
Q interview with respect to what was found in the premises as the police Q
officers had reasonable suspicion the defendant might have committed
R R
other offences (see paragraphs 12 & 14 of the written submission).
S S
T T
U U
V V
15
A A
B B
Evidence
C C
50. The prosecution called DPC 58777 and DPC 3881. The
D defendant elected not to give evidence or call witnesses. No adverse D
inference was drawn against the defendant for remaining silent. It was
E E
for the prosecution to prove beyond reasonable doubt that the interview
F was given voluntarily. F
G G
51. DPC 58777 and DPC 3881 testified that they did not nor did
H anybody else at any time use force, threats, inducements or oppression to H
make the defendant reply to caution; sign the post-record or give the
I I
video interview. The evidence of DPC 58777 and DPC 3881 was not
J challenged. I accepted their evidence. J
K K
Ruling
L L
52. I carefully considered all the evidence and the oral and
M written points of submission of Mr Tracy and the oral and written M
submission of Mr Lee. I had no hesitation in rejecting the defence
N N
submissions.
O O
Oppression
P P
53. Oppressive conduct is conduct which tends to sap the will of
Q Q
an accused so that he makes an admission when he would otherwise have
R stayed silent (see R. v. Prager [1972] 1 All ER 1114 as applied in HKSAR R
v Leung John Timothy @ Leung Chiu Ming [2001] 1 HKLRD 272). In
S S
Secretary for Justice v Lam Tat-ming and another [2000] 2 HKLRD 431
T the Court of Appeal citing Prager affirmed that oppression is conduct by T
a person in authority which tends to sap and does sap the will of the
U U
V V
16
A A
B B
accused so that he makes the statement. The issue of whether or not there
C has been oppression in a particular case is essentially a question of fact. C
D 54. The police have a duty to investigate cases (see Bruce & D
McCoy, Criminal Evidence in Hong Kong, Division V, paragraph 604
E E
and Archbold Hong Kong 2015, paragraph 15-131). In my view the fact
F that a suspect has under caution said he has nothing to say does not mean F
the police should immediately stop the interview and ask no questions.
G G
H 55. I am satisfied a police officer has a right to ask questions just H
in the same way a police officer does not have to accept a denial and can
I I
ask the question again. In R v Paris (1993) 97 Cr App R 100 the court
J said: J
K “Of course, it is perfectly legitimate for officers to K
pursue interrogation of a suspect with a view to eliciting his
L L
account or gaining admissions. They are not required to give up
M
after the first denial or even after a number of denials.” M
N 56. Further by asking questions the suspect is given the N
opportunity, should he choose to do so, to explain any of the matters of
O O
which the police are investigating.
P P
57. A time may however come where the questioning becomes
Q Q
oppressive. I am satisfied that the questioning of the defendant was not
R oppressive. I do not find anything suggestive of a sapping of the R
defendant’s will. From shortly before half way in the interview to almost
S S
the end the defendant was repeatedly asked whether he had anything to
T say. On some occasions the defendant would reply and on others he T
U U
V V
17
A A
B B
would have nothing to say (see counters 1154-2612). This in my view
C shows that the interview rather than being oppressive was fair. C
D Failure to caution D
E E
58. Mr Lee submitted that the defendant should have been
F cautioned during the video interview not only about the eight boxes but F
also in connection with the items found in the premises. This caution Mr
G G
Lee said should have been at the beginning of the interview.
H H
59. In making this submission Mr Lee relied in part on the fact
I that at the scene of arrest the defendant was cautioned in respect of items I
found in the premises. Mr Lee submitted this showed the officer had
J J
suspicion of the commission of further offences and therefore should
K K
have repeated this caution in the video interview, in particular
L
considering that prior to the interview the police officers discussed the L
areas they were to question the defendant about, including what was
M M
found in the premises.
N N
60. Mr Tracy conceded in respect of charges 1 & 2 that a caution
O should have been administered at counter 1829 when the defendant was O
asked about the items found in the premises.
P P
Q 61. In my view there was no breach of Rule II. Whether a Q
further caution should have been administered at the beginning of or
R R
during the interview in connection with the facts now relied upon in
S respect of charges 1 & 2 depends in my view on whether the defendant S
was made aware of the true nature of the investigation (see for example R
T T
U U
V V
18
A A
B B
v Kirk [2000] 1 WLR 567; HKSAR v Mok King Yu (2nd applicant)
C CACC 64/2009; and HKSAR v Pang Ho Yin [2010] 3 HKLRD 515). C
D 62. There can be no doubt the defendant was made aware of the D
true nature of the investigation. At the scene of arrest he was cautioned
E E
about the eight carton boxes and cautioned a second time about what was
F found during a search of the premises. Although the video interview F
commenced with reciting the reason for arrest only the defendant can
G G
have been under no misapprehension about what the police were
H investigating, namely his dealings in arms and ammunition. I was H
satisfied there was no need for a further caution.
I I
J 63. Further questions about two previous occasions first arose J
from what the defendant told the police in answer to the first caution and
K K
not from what was found in the premises. In my view the police had a
L right and indeed a duty to enquire about the explanation given by the L
defendant and to see whether what was found in the premises was
M M
connected. Whether the defendant answered the questions was a matter
N for him. N
O O
64. Even if it can be said that there was a breach of Rule II I was
P satisfied that this did not affect the voluntariness of the video interview P
the defendant having been made fully aware of his rights having been
Q Q
cautioned twice at the scene of arrest; having been served with a Notice
R to Persons in Custody prior to both the post-record and the video R
interview; and being cautioned at the beginning of the video interview.
S S
T T
U U
V V
19
A A
B B
65. I was further satisfied the fact that the defendant was
C questioned after he said he had nothing to say and was not further C
cautioned did not, taken together, amount to oppression.
D D
66. Having carefully considered all the evidence and the
E E
submissions made I found I was satisfied beyond reasonable doubt that
F the video interview was given voluntarily. Applying the principles F
established in Lam Tat-ming I found no grounds to exercise my discretion
G G
to exclude from evidence the video interview on the grounds of
H unfairness. H
I I
Licence
J J
67. Admitted in evidence is that the defendant has never held a
K
dealer’s licence authorising him to deal in arms (see paragraph 6 of the K
L
admitted facts). L
M Dealing in arms M
N N
68. I now turn to consider whether the defendant by way of trade
O or business dealt with arms. To "deal in" is defined in the Ordinance as O
meaning:
P P
(a) to manufacture, store, sell, let on hire, part with possession
Q Q
of, supply, import, export, procure, purchase, take on hire, take
R
possession of, transport, repair, test, prove or to offer to do any R
of the foregoing;
S (b) to expose for sale or hire or to have in possession for storage, S
sale, hire, supply, transport, repairing, testing or proving.
T T
U U
V V
20
A A
B B
69. On his own admission both under caution and in the video
C interview the defendant said there were two occasions where he received C
stun guns for a Mr Ho. To take possession of stun guns falls within the
D D
definition of to “deal in”. Further from the finding in the premises of
E empty boxes for Taser X26C stun guns and cartridges, the same E
packaging as the arms and ammunition intercepted by the Customs &
F F
Excise and delivered to the defendant by the police, the only inference to
G draw is that the defendant parted with possession of the stun guns, which G
also falls within the definition of to “deal in”.
H H
By way of trade or business
I I
J 70. As stated earlier the main issue is whether the defendant by J
way of trade or business dealt in arms. There is no guidance from Hong
K K
Kong case law as to what is trade or business in the context of the
L Ordinance. Nor can I find any case law from the United Kingdom where L
there is a similar offence of trading in firearms without being registered
M M
as a firearms dealer (see section 3 of the Firearms Act 1968).
N N
71. Reference to “by way of trade or business” is found in the
O O
Gambling Ordinance, Chapter 148 where section 7 makes it an offence of
P bookmaking for any person who holds out in any manner that he solicits, P
receives, negotiates or settles bets by way of trade or business. Mr Lee in
Q Q
his closing submission also referred to the Gambling Ordinance.
R Specifically Mr Lee refers the court to the decision of the Court of Final R
Appeal in HKSAR v Chu Kam Yiu & others (2002) 5 HKCFAR 591
S S
where Mr Justice Chan PJ said:
T T
U U
V V
21
A A
B “What amounts to a trade or business depends on the B
facts of each case. An important factor is whether it involves the
C C
opportunity of making profit or the risk of incurring loss. Other
D factors include the set-up and the operation in question, the D
nature of the activities, the records kept and equipment used.”
E E
The Shorter Oxford English Dictionary defines “trade” as
F F
the buying or selling or exchange of commodities for profit. “In
G business” is defined as habitually occupied in trade or commerce. G
H H
72. The only direct evidence of how the defendant dealt with the
I stun guns after he received them comes from what he told the police in I
the video interview. In summary the defendant said that in May and
J J
October 2013 he had on behalf of Mr Ho received stun guns from the
K USA. On each occasion at the request of Mr Ho the defendant delivered K
the stun guns to a Mr Chan. Before delivery, again at the request of Mr
L L
Ho, the defendant repacked the stun guns to make them smaller and
M easier for Mr Chan to carry (for the first occasion see counters 183-394; M
658-677; 915-964; and 995-1004; and the second occasion see counters
N N
405-534; 965-972; 1724-1791; and 2619-2640).
O O
73. During the interview the defendant was shown various
P P
documents found during the search of the premises. Admitted in
Q evidence is a schedule of the documents shown to the defendant during Q
the interview (see schedule 2, paragraph 8 of the admitted facts). All the
R R
documentation has not however been produced by the prosecution as part
S of their case. The documentation shown to the defendant but not S
produced is marked P23C-G for identification as part of the video
T T
interview.
U U
V V
22
A A
B B
74. I have carefully considered the content of the video
C interview. I do not find credible the defendant’s account of how he dealt C
with the stun guns after he received them. For example on both occasions
D D
the defendant said he delivered the stun guns to a Mr Chan, not the same
E Mr Chan but a different Mr Chan (see counters 251-264; 455-458 and E
463-466). I do not find credible the defendant was asked to deliver stun
F F
guns to two different Mr Chans, who he was only able to give a general
G description of and did not keep their phone numbers (see counters 264- G
290; 463-482; 513-516; and 915-922).
H H
75. I do not find credible the defendant did not know in advance
I I
that stun guns would be sent to him (see counters 205-232; 313-316; 456-
J J
462; 535-538; 943-956 and 2517-2536). I find inherently improbable that
K
stun guns would be sent to the defendant from the USA once let alone K
three times without his prior knowledge and consent the sender thereby
L L
running the risk that the defendant would not accept delivery of the stun
M
guns or that the stun guns would fall into the hands of others, be handed M
over to the police or otherwise disposed of in a way other than intended
N N
by the sender.
O O
76. In the interview the defendant at first said he did not know
P stun guns were illegal (see counters 459-460). Later in the interview the P
defendant said that he had heard from friends that handling stun guns
Q Q
probably seems to be against the law (see counters 707-713 and 956-964).
R Asked why he agreed to deliver the stun guns knowing they were illegal R
the defendant replied that it was his own fault and that on the first
S S
occasion he delivered the stun guns to help a friend (see counters 950-
T 964) and on the second occasion because he was soft-hearted (see T
U U
V V
23
A A
B B
counters 965-972). I do not find credible the defendant would deal with
C stun guns knowing they were illegal simply to help a friend and because C
he was soft-hearted.
D D
77. On the first occasion the defendant said he delivered four
E E
stun guns to a Mr Chan (see counters 192-216 and 251-258) and on the
F second occasion probably delivered six stun guns to a Mr Chan (see F
counters 405-440; 455-456; and 483-494). I do not find credible that the
G G
defendant only dealt with ten stun guns. In the premises were 17 empty
H boxes for X26C stun guns indicating the defendant’s dealings with stun H
guns were much more than he told the police.
I I
J 78. That the defendant had more dealings with Taser stun guns is J
also indicated in a fax found in the premises. The fax was shown during
K K
the video interview and marked as P23E for identification. The fax dated
L the 25 March 2013 and entitled “Detailed list of goods delivered from US L
to HK” states that in respect of invoice No.: 85714258673 20 Taser guns,
M M
10 rope bags and 14 knives arrived in Hong Kong on the 25 March 2013.
N The prosecution however do not seek to rely on this document which has N
not been produced as part of their case.
O O
P 79. In the interview when asked about this fax the defendant said P
very obviously this was referring to stun guns (see counters 2513-2516).
Q Q
The defendant variously explained the goods may not have arrived in
R Hong Kong; he did not receive the goods; asked if he did receive the stun R
guns replied, “Yes, probably not, no”; thought they were toy guns; did
S S
not know what Taser guns were; only now came to know this name; and
T was told the cartridges were batteries (see counters 2462-2544). T
U U
V V
24
A A
B B
80. I do not find credible the defendant’s explanations given
C with regard to this fax. The invoice No.: 85714258673 is the same C
number as the tracking number on one of the eight FedEx air waybills
D D
(exhibit P29A) and one of the seven commercial invoices (exhibit P29D)
E both dated the 21 March 2013 and found inside the DHL envelope. The E
finding of these documents indicates the goods were sent to the
F F
defendant. The air waybill states the contents are Gears & Outdoor
G Goods (Bags & holsters). G
H 81. Further the date and invoice number are found on page three H
of the three page handwritten document (exhibit P30), which was also
I I
found in the DHL envelope. The defendant admits writing this record
J J
(see counters 2186-2226). The record is said to be a list of cargo
K
delivered by the defendant to Mr Ho together with details of all expenses. K
This record also indicates the goods were sent to the defendant however
L L
the content of the cargo is not specified in respect of invoice number
M
85714258673 and the defendant said this record does not contain M
transactions involving stun guns (see counters 2292-2297).
N N
82. Having found the defendant’s account of how he dealt with
O O
the stun guns after he received them not credible leaves only the finding
P of the empty boxes in the premises together with the documentation, P
exhibits P29 & P30. I find this evidence insufficient for the court to draw
Q Q
the inference that the defendant’s dealings in stun guns was by way of
R trade or business. I find the prosecution have failed to prove the R
defendant by way of trade or business dealt with arms. The defendant is
S S
acquitted of charges 1 & 2.
T (D. J. DUFTON) T
District Judge
U U
V V
A A
B B
DCCC 64/2015
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 64 OF 2015 D
____________
E HKSAR E
v
F F
LEE BING KWAN
G ____________ G
H Before : HH Judge Dufton H
Date : 24 June 2015
I Present: Mr M. Peter Tracy, counsel on fiat, for HKSAR I
Mr SW Lee leading Mr Peter Yu, instructed by Alan Ho &
J Co, for the defendant J
Offences: (1)-(2) Dealing in arms without a licence (無牌經營槍械)
K K
(3) Possession of arms and ammunition without a licence
(無牌管有槍械及彈藥)
L L
M REASONS FOR VERDICT M
N 1. The defendant pleads not guilty to two charges of dealing in N
arms without a licence (charges 1 & 2) and one charge of possession of
O O
arms and ammunition without a licence (charge 3), contrary to sections
P 13 & 14 of the Firearms and Ammunition Ordinance, Chapter 238. P
Q Q
Introduction
R R
2. On the 23 February last year at the Asia Airfreight Terminal
S near the Hong Kong International Airport Customs & Excise officers S
conducting routine cargo clearance of a Federal Express aircraft
T T
discovered a Taser X2 Defender stun gun with 4 cartridges; 10 Taser
U U
V V
2
A A
B B
X26C stun guns each with 6 cartridges and 150 packages each containing
C two Taser X26C cartridges. These were contained in six of eight carton C
boxes addressed to Lee Bing Kwan at 35, G/Floor, Guar Tin Ping Che
D D
Village, Ta Ku Ling in the New Territories.
E E
3. The case was reported to the police. The following day the
F police, including DPC 58777, disguised as Federal Express delivery F
workers conducted a controlled delivery of the eight carton boxes to the
G G
defendant at G/F, No 35 Kat Tin Village, Ping Che, Ta Kwu Ling in the
H New Territories (‘the premises”). After the defendant signed receipt for H
delivery of the eight carton boxes he was arrested by DPC 58777.
I I
J 4. Under caution (and in a later video interview) the defendant J
said that he had received stun guns on two previous occasions for a Mr
K K
Ho and that unexpectedly delivery was made a third time.
L L
5. A search warrant of the premises was then executed and the
M M
premises searched. During the search the police found 17 empty boxes
N for Taser X26C stun guns; 23 empty packages for Taser X26C cartridges N
and some documentation. In the video interview the defendant was asked
O O
about the two previous occasions and the items found in the premises.
P P
Issues
Q Q
6. There is no issue that the Taser X2 Defender stun gun; the 10
R R
Taser X26C stun guns and all the 364 cartridges are arms and
S ammunition for which the defendant had no licence. No objection was S
taken to the admissibility of the oral statement under caution. The
T T
admissibility of the video was however challenged.
U U
V V
3
A A
B B
7. The main issue on charge 3 is whether the defendant was in
C possession, custody or control of the arms and ammunition knowing that C
they were arms and ammunition. In summary the prosecution case, as
D D
opened on charge 3, is that by signing for delivery the defendant took
E possession of the eight carton boxes containing the arms and ammunition E
(see paragraph 2 of the opening). The opening does not however say on
F F
what evidence the prosecution ask the court to draw the inference the
G defendant knew the eight carton boxes contained arms and ammunition. G
H 8. The defence case as put in their closing submission is that H
the defendant never took possession of the arms and ammunition and
I I
further that there is no evidence from the prosecution to show that the
J J
defendant knew the eight carton boxes contained arms and ammunition.
K K
9. The opening does not set out the prosecution case on
L charges 1 & 2 save to say that if the court rules admissible the video L
interview this substantiates charges 1 & 2 (see paragraphs 4 & 7 of the
M M
opening).
N N
10. On a charge of dealing in arms and ammunition the
O O
prosecution must prove that the dealing was by way of trade or business.
P As already noted under caution the defendant said that he had received P
stun guns on two previous occasions for a Mr Ho. In the video interview
Q Q
the defendant was asked about these two occasions and their relationship
R with the empty boxes found in the premises. The main issue is whether R
by way of trade or business the defendant dealt in arms.
S S
11. The defence case as put in their closing submission is that
T T
there is no direct evidence that what the defendant dealt with was actually
U U
V V
4
A A
B B
arms and that there is no evidence capable of showing that the defendant
C had operated a trade or business in dealing with arms and ammunition. C
D Evidence D
E E
12. The prosecution called two witnesses DPC 58777, the
F arresting officer, and DPC 3881, the exhibit officer (referred to as PW3 & F
PW4 in the opening). The evidence of Man Hing Sun (PW5), the owner
G G
of the premises and who produced the tenancy agreements (exhibit P26)
H was read pursuant to section 65B of the Criminal Procedure Ordinance, H
Chapter 221. Also read was the evidence of DSPC 52037 (PW6), who
I I
produced the photographs (exhibit P1); and the evidence of three expert
J witnesses Tam Cheok Ning (PW8); Poon Wai Ming (PW9) and Chan J
Che Wah (PW10).
K K
L
13. Facts have also been admitted pursuant to section 65C of the L
Criminal Procedure Ordinance, Chapter 221 (exhibit P34) including
M M
discovery of the arms and ammunition by the Customs & Excise and that
N the defendant had never held a licence to possess arms and ammunition or N
a dealer’s licence. I will refer to the admitted facts as I review the
O O
evidence.
P P
14. The defendant elected not to give evidence or call witnesses
Q on both the special issue and the general issue. No adverse inference is Q
drawn against the defendant for remaining silent. That is his right. This
R R
proves nothing one way or the other. The prosecution must prove the
S charges beyond reasonable doubt, each charge being considered S
separately.
T T
U U
V V
5
A A
B B
15. Reliance is however placed by the defence on the answer
C under caution and in the video interview that the stun guns were delivered C
unexpectedly and that the defendant had no knowledge stun guns were to
D D
be delivered until the police officer told him the content of the eight
E carton boxes. In reaching my verdict I have considered the reply under E
caution and the content of the video interview, both the inculpatory and
F F
exculpatory parts, in accordance with the decision in R v Sharp (1988) 1
G WLR 7. G
H 16. I remind myself that when drawing inferences from the H
evidence the inference must be a compelling one and the only one that no
I I
reasonable man could fail to draw from the direct facts proved.
J J
17. Admitted in evidence is that the defendant has a clear record.
K K
In ruling on the admissibility of the video interview and in reaching my
L verdict I have directed myself as to good character in accordance with the L
decision in HKSAR v Tang Siu Man [1997-98] 1 HKCFAR 107.
M M
N 18. I have carefully considered all the evidence and the closing N
submission of Mr Lee. Notwithstanding a request from the court for
O O
assistance on various issues because the defendant elected not to give
P evidence Mr Tracy declined to make a closing submission. P
Q Charge 3 Q
R R
19. I will first deal with charge 3. Save for exactly how the eight
S carton boxes were delivered to the defendant on the 24 February 2014 the S
evidence has either not been challenged or has been admitted and can
T T
therefore be briefly summarised.
U U
V V
6
A A
B B
20. The finding by the Customs & Excise on the 23 February
C 2014 at the Asia Airfreight Terminal when conducting routine cargo C
clearance of a Federal Express aircraft of the eight carton boxes
D D
containing the Taser X2 Defender stun gun with 4 cartridges (exhibit P2);
E the 10 Taser X26C stun guns each with 6 cartridges (exhibits P3-P12) and E
the 150 packages each containing two Taser X26C cartridges (exhibit
F F
P14) is admitted (see paragraph 1 of the admitted facts, exhibit P34). For
G ease of reference one of the 150 packages was marked P14A. G
H 21. The case was reported to the police. DPC 3881 (PW4) H
seized the eight carton boxes and their contents (see paragraph 2 of the
I I
admitted facts). DPC 3881 identified each of the eight carton boxes and
J J
their contents with reference to photographs 32-62, exhibit P1.
K
Specifically the Taser X2 Defender stun gun with 4 cartridges and the 10 K
Taser X26C stun guns each with 6 cartridges were found in box 6 shown
L L
in photographs 53-57. The 150 boxes each containing two Taser X26C
M
cartridges were found in boxes 2, 3, 4, 5 & 7 shown in photographs 37- M
43; 47-48; 50-51 and 58-59.
N N
22. The air waybill (exhibit P27), which was attached to box 1
O O
(see photograph 33) together with the corresponding commercial invoice
P (exhibit P28), show that the eight carton boxes were addressed to Lee P
Bing Kwan at 35, G/Floor, Guar Tin Ping Che Village, Ta Ku Ling, New
Q Q
Territories. In the evening the police attempted to deliver the eight carton
R boxes to Lee Bing Kwan at G/F, No 35 Kat Tin Village, Ping Che (“the R
premises”) but were unable to locate him. In cross-examination DPC
S S
58777 agreed that one of his colleagues later telephoned Lee Bing Kwan
T to make an appointment for delivery the next day. T
U U
V V
7
A A
B B
23. The following afternoon at about 3:15 DPC 58777 and two
C colleagues dressed as Federal Express delivery workers went to the C
premises to deliver the eight carton boxes. After alighting from a light
D D
goods vehicle DPC 58777 saw the defendant standing outside the
E premises waving towards them. When DPC 58777 told the defendant E
they had come to deliver goods for a person named Lee Bing Kwan the
F F
defendant said he was Lee Bing Kwan. DPC 58777 then pushed the eight
G carton boxes on a metal cart to a position in front of the premises. G
H 24. The defendant was then asked to show his identity card. H
After checking the identity card and confirming the particulars were the
I I
same as on the delivery record (exhibit P25), which the police had
J J
prepared in advance, DPC 58777 showed the delivery record to the
K
defendant and asked him to check the numbers on the delivery record K
matched with the numbers on the eight carton boxes. After the defendant
L L
confirmed the numbers matched DPC 58777 asked the defendant to sign
M
the delivery record. M
N 25. In cross-examination DPC 58777 disagreed the police N
arrived first and that after the defendant arrived he was asked to go to the
O O
police van to count the eight carton boxes.
P P
26. After the defendant signed the delivery record DPC 58777
Q Q
revealed his police identity and arrested the defendant for dealing in arms
R and ammunition without a licence. Under caution the defendant said; “Ah R
Sir I do not know these eight carton boxes are stun guns. On the last occasion Mr Ho
S told me to receive stun guns for two times. I also told Mr Ho not to deliver stun guns S
here again. It was unexpected that delivery was made again.” DPC 58777 post-
T T
recorded this reply in his note book (exhibit P22).
U U
V V
8
A A
B B
27. I accept the evidence of DPC 58777 as to the circumstances
C he delivered the eight carton boxes. I reject the defence assertion in C
cross-examination that the police arrived before the defendant and that
D D
after the defendant arrived he was asked to go to the police van to count
E the eight boxes. E
F Arms and Ammunition F
G G
28. Notwithstanding the defence were willing to admit the Taser
H X2 Defender stun gun with 4 cartridges; the 10 Taser X26C stun guns H
each with 6 cartridges and the 150 packages each containing two Taser
I I
X26C cartridges are arms and ammunition Mr Tracy elected to read the
J witness statements of three experts together with 12 valuation reports J
(exhibits P31, P38 & P39).
K K
L
29. I have carefully read the reports together with the first L
schedule of the admitted facts. I accept the evidence of the three
M M
witnesses. I am satisfied the Taser X2 Defender stun gun and the 10
N Taser X26C stun guns are electric stunning devices and therefore arms N
within the definition of arms, and that all the 364 cartridges are
O O
ammunition within the definition of ammunition.
P P
Licence
Q Q
30. Admitted in evidence is that the defendant has never held a
R R
licence for possession of arms and ammunition issued under the Firearms
S and Ammunition Ordinance (see paragraph 6.1 of the admitted facts, S
exhibit P34).
T T
U U
V V
9
A A
B B
Possession
C C
31. A person is in possession of arms and ammunition or of any
D documents, keys or other things mentioned in section 24 if they are D
actually in his possession or under his control or are held by some other
E E
person subject to his control or instructions or for him or on his behalf
F (see section 2(2) of the Ordinance). F
G G
32. Section 24(1) of the Ordinance provides that any person who
H is proved to have had in his physical possession (a) anything containing H
arms or ammunition, or both shall, until the contrary is proved, be
I I
presumed to have had the arms or ammunition, or both, as the case may
J be, in his possession. Section 24(2) provides that any person who is J
proved or presumed to have had arms or ammunition, or both, in his
K K
possession shall, until the contrary is proved, be presumed to have known
L the nature of such arms or ammunition, or both, as the case may be. L
M M
33. In my view for the presumptions to apply the prosecution
N must prove the defendant was in possession of the eight carton boxes at N
the time of his arrest. If they do apply then following the decision of the
O O
Court of Appeal in HKSAR v Mohammed Khan Shamim [2013] 3
P HKLRD 469 the presumptions are to be construed as imposing on the P
defendant an evidential burden only.
Q Q
34. Mr Lee submits that the defendant was not in possession of
R R
the eight carton boxes and in support of his submission relies on the
S decision of the Court of Appeal in HKSAR v Mohammed Saleem [2009] 1 S
HKLRD 369 (see paragraphs 28-31 of the closing submission of Mr Lee).
T T
U U
V V
10
A A
B B
35. The facts in Mohammed Saleem are very similar. Customs
C & Excise intercepted a bag at the airport which had arrived by Federal C
Express from India. Inspection of the bag revealed the presence of
D D
Ketamine. Attached to the bag was a label addressed to Mr V Nelson at
E an address in Chungking Mansion. Customs & Excise officers conducted E
a controlled delivery at that address. The appellant answered to the name
F F
of “V Nelson” and produced photographic identification. The appellant
G then signed the delivery form as proof of his receipt of the bag which was G
placed on the floor beside him. When he was about to pick up the bag he
H H
was arrested.
I I
36. A no case submission was made that the prosecution had
J J
fallen short of proving the appellant was in possession of the ketamine
K
there being no sufficient evidence to establish that the appellant ever had K
the custody of or control over the bag containing the ketamine.
L L
37. In ruling there was a case to answer the Recorder stated:
M M
“The fact that the defendant had completed all the
N N
formalities for receipt of the package and was in the act of
O physically moving forward to receive it is, in my view, O
sufficient to bring the parcel within his physical possession for
P the purposes of section 47(l) of the Ordinance” P
Q Q
(The reference to section 47(1) is reference to a similar presumption in
R the Dangerous Drugs Ordinance to that in section 24(1) of the R
Ordinance).
S S
T
38. The Recorder continued: T
U U
V V
11
A A
B “I do not accept that, because the Customs & Excise B
officers prevented him from physically touching the parcel, that
C C
this was capable of breaking the chain. The evidence of Customs
D Officer 9527 was that the Customs & Excise Department D
considered that custody and control passed to the defendant
E upon completion of the delivery form. Indeed, in reliance on that E
belief, they were not prepared to risk the defendant taking
F F
physical custody of the parcel and so the arrest was declared to
prevent that.
G G
H I am satisfied that, on the evidence so far, the defendant H
was in control of the parcel from the time he had satisfied all the
I requirements for delivery. Any issue about whether he had I
actually touched or held the parcel is not capable of severing
J J
that control.”
K K
39. On appeal the first ground of appeal was the Recorder erred
L in law by failing to uphold the submission of no case to answer. The L
Court of Appeal disagreed with the submission of the respondent that the
M M
Recorder was entitled to have concluded possession had been established.
N In rejecting this submission the Court of Appeal said that it was necessary N
for the prosecution to prove that the appellant knowingly had either
O O
physical custody of the ketamine or, alternatively, that it was otherwise
P within his physical control and that he intended, as and when the occasion P
arose, to exercise control over the drugs whether or not by physically
Q Q
handling them.
R R
40. The customs officers having physical possession of the drugs
S S
at all times and were under instructions not to allow the appellant to lay
T so much as a finger on them the Court of Appeal held that the prosecution T
U U
V V
12
A A
B B
had produced no evidence of physical custody of the ketamine or control
C over the ketamine at the stage when the appellant was arrested. C
D 41. The defendant in the present case never took physical D
custody of the eight carton boxes. He was arrested as soon as he signed
E E
the delivery record. In cross-examination DPC 58777 said the defendant
F never touched the eight carton boxes while checking the numbers were F
the same as on the delivery record. The Court of Appeal having rejected
G G
that the signing of the delivery receipt was sufficient to amount to
H possession there are in my view no grounds to distinguish this decision. H
I I
42. I find that the prosecution have failed to prove the defendant
J was in actual possession of the arms and ammunition or that they were J
under his control or held by some other person subject to his control or
K K
instructions or for him or on his behalf. The arms and ammunition were
L throughout in the possession, custody and control of the police officers. L
The presumptions in section 24 do not therefore apply. In the
M M
circumstances it is not necessary for me to go on to consider whether the
N prosecution have proved the defendant knew arms and ammunition were N
to be delivered although I do refer to the defendant’s knowledge when
O O
considering charges 1 & 2. The defendant is acquitted of charge 3.
P P
Charges 1 & 2
Q Q
43. The evidence relating to charges 1 & 2 may also be briefly
R R
summarised. As seen earlier under caution the defendant said that he had
S received stun guns on two previous occasions for a Mr Ho. A search S
warrant was then executed and the premises searched. In the presence of
T T
the defendant DPC 3881 seized five carton boxes and their contents
U U
V V
13
A A
B B
(exhibits P17-P21) and some documentation contained in a DHL
C envelope (exhibits P29 & P30). The location where DPC 3881 seized C
these exhibits is shown in a sketch of the premises (exhibit P24) drawn by
D D
the officer.
E E
44. These five carton boxes were found inside room B and are
F shown together with their contents in photographs 9-22, exhibit P1. F
Inside the carton boxes was packaging material for Taser stun guns
G G
including 17 empty boxes for Taser X26C stun guns and 23 empty
H packages for Taser X26C cartridges. Also found in the carton boxes was H
operating manuals, training DVDs and human targets for Taser stun guns
I I
and some plastic and Styrofoam packaging. For convenience samples of
J J
each carton box were marked as exhibits P17A-P21A. The packaging is
K
the same packaging in which ten of the stun guns and the ammunition K
subject of charge 3 were contained.
L L
45. Inside the DHL envelope (exhibit P29) DPC 3881 found air
M M
waybills (exhibit P29A), commercial invoices (exhibit P29D) and a three
N page handwritten document (exhibit P30). The DHL envelope is marked N
E2 on the sketch and is shown in photographs 4-6. Other items including
O O
knives (marked E1 on the sketch) were found in the living room and
P shown in photographs 24-29. These have not been produced by the P
prosecution.
Q Q
R 46. After the search the defendant was further cautioned about R
dealing in arms and ammunition. The defendant replied he understood
S S
and had nothing further to say. This was also post-recorded as part of
T exhibit P22. The same evening the defendant was interviewed on video T
U U
V V
14
A A
B B
(exhibit P23) about what he had said under caution and the finding of the
C exhibits in the premises. C
D Voir dire D
E E
47. I will first give my reasons for ruling the video interview
F admissible in evidence. The defence objected to the admissibility of the F
interview on the grounds of oppression as particularised in the written
G G
grounds of objection submitted by Mr Lee. The basis of the objections
H was twofold relating to the manner in which the interview was conducted. H
I 48. First the questioning of the defendant after he replied “No” I
when asked if he had anything to say (see counters 59-72) was a clear
J J
indication the defendant did not wish to say anything. Similarly when
K K
asked about items found in the premises the defendant again said he had
L
nothing to say (see counters 1698-1712). The defence submitted the L
further questioning of the defendant undermined his right to silence and
M M
amounted to oppression (see paragraphs 8-11, 13 & 14 of the written
N submission). N
O 49. Second the defence submitted that in breach of Rule II of the O
Rules and Directions for the Questioning of Suspects and the Taking of
P P
Statements the defendant should also have been cautioned in the video
Q interview with respect to what was found in the premises as the police Q
officers had reasonable suspicion the defendant might have committed
R R
other offences (see paragraphs 12 & 14 of the written submission).
S S
T T
U U
V V
15
A A
B B
Evidence
C C
50. The prosecution called DPC 58777 and DPC 3881. The
D defendant elected not to give evidence or call witnesses. No adverse D
inference was drawn against the defendant for remaining silent. It was
E E
for the prosecution to prove beyond reasonable doubt that the interview
F was given voluntarily. F
G G
51. DPC 58777 and DPC 3881 testified that they did not nor did
H anybody else at any time use force, threats, inducements or oppression to H
make the defendant reply to caution; sign the post-record or give the
I I
video interview. The evidence of DPC 58777 and DPC 3881 was not
J challenged. I accepted their evidence. J
K K
Ruling
L L
52. I carefully considered all the evidence and the oral and
M written points of submission of Mr Tracy and the oral and written M
submission of Mr Lee. I had no hesitation in rejecting the defence
N N
submissions.
O O
Oppression
P P
53. Oppressive conduct is conduct which tends to sap the will of
Q Q
an accused so that he makes an admission when he would otherwise have
R stayed silent (see R. v. Prager [1972] 1 All ER 1114 as applied in HKSAR R
v Leung John Timothy @ Leung Chiu Ming [2001] 1 HKLRD 272). In
S S
Secretary for Justice v Lam Tat-ming and another [2000] 2 HKLRD 431
T the Court of Appeal citing Prager affirmed that oppression is conduct by T
a person in authority which tends to sap and does sap the will of the
U U
V V
16
A A
B B
accused so that he makes the statement. The issue of whether or not there
C has been oppression in a particular case is essentially a question of fact. C
D 54. The police have a duty to investigate cases (see Bruce & D
McCoy, Criminal Evidence in Hong Kong, Division V, paragraph 604
E E
and Archbold Hong Kong 2015, paragraph 15-131). In my view the fact
F that a suspect has under caution said he has nothing to say does not mean F
the police should immediately stop the interview and ask no questions.
G G
H 55. I am satisfied a police officer has a right to ask questions just H
in the same way a police officer does not have to accept a denial and can
I I
ask the question again. In R v Paris (1993) 97 Cr App R 100 the court
J said: J
K “Of course, it is perfectly legitimate for officers to K
pursue interrogation of a suspect with a view to eliciting his
L L
account or gaining admissions. They are not required to give up
M
after the first denial or even after a number of denials.” M
N 56. Further by asking questions the suspect is given the N
opportunity, should he choose to do so, to explain any of the matters of
O O
which the police are investigating.
P P
57. A time may however come where the questioning becomes
Q Q
oppressive. I am satisfied that the questioning of the defendant was not
R oppressive. I do not find anything suggestive of a sapping of the R
defendant’s will. From shortly before half way in the interview to almost
S S
the end the defendant was repeatedly asked whether he had anything to
T say. On some occasions the defendant would reply and on others he T
U U
V V
17
A A
B B
would have nothing to say (see counters 1154-2612). This in my view
C shows that the interview rather than being oppressive was fair. C
D Failure to caution D
E E
58. Mr Lee submitted that the defendant should have been
F cautioned during the video interview not only about the eight boxes but F
also in connection with the items found in the premises. This caution Mr
G G
Lee said should have been at the beginning of the interview.
H H
59. In making this submission Mr Lee relied in part on the fact
I that at the scene of arrest the defendant was cautioned in respect of items I
found in the premises. Mr Lee submitted this showed the officer had
J J
suspicion of the commission of further offences and therefore should
K K
have repeated this caution in the video interview, in particular
L
considering that prior to the interview the police officers discussed the L
areas they were to question the defendant about, including what was
M M
found in the premises.
N N
60. Mr Tracy conceded in respect of charges 1 & 2 that a caution
O should have been administered at counter 1829 when the defendant was O
asked about the items found in the premises.
P P
Q 61. In my view there was no breach of Rule II. Whether a Q
further caution should have been administered at the beginning of or
R R
during the interview in connection with the facts now relied upon in
S respect of charges 1 & 2 depends in my view on whether the defendant S
was made aware of the true nature of the investigation (see for example R
T T
U U
V V
18
A A
B B
v Kirk [2000] 1 WLR 567; HKSAR v Mok King Yu (2nd applicant)
C CACC 64/2009; and HKSAR v Pang Ho Yin [2010] 3 HKLRD 515). C
D 62. There can be no doubt the defendant was made aware of the D
true nature of the investigation. At the scene of arrest he was cautioned
E E
about the eight carton boxes and cautioned a second time about what was
F found during a search of the premises. Although the video interview F
commenced with reciting the reason for arrest only the defendant can
G G
have been under no misapprehension about what the police were
H investigating, namely his dealings in arms and ammunition. I was H
satisfied there was no need for a further caution.
I I
J 63. Further questions about two previous occasions first arose J
from what the defendant told the police in answer to the first caution and
K K
not from what was found in the premises. In my view the police had a
L right and indeed a duty to enquire about the explanation given by the L
defendant and to see whether what was found in the premises was
M M
connected. Whether the defendant answered the questions was a matter
N for him. N
O O
64. Even if it can be said that there was a breach of Rule II I was
P satisfied that this did not affect the voluntariness of the video interview P
the defendant having been made fully aware of his rights having been
Q Q
cautioned twice at the scene of arrest; having been served with a Notice
R to Persons in Custody prior to both the post-record and the video R
interview; and being cautioned at the beginning of the video interview.
S S
T T
U U
V V
19
A A
B B
65. I was further satisfied the fact that the defendant was
C questioned after he said he had nothing to say and was not further C
cautioned did not, taken together, amount to oppression.
D D
66. Having carefully considered all the evidence and the
E E
submissions made I found I was satisfied beyond reasonable doubt that
F the video interview was given voluntarily. Applying the principles F
established in Lam Tat-ming I found no grounds to exercise my discretion
G G
to exclude from evidence the video interview on the grounds of
H unfairness. H
I I
Licence
J J
67. Admitted in evidence is that the defendant has never held a
K
dealer’s licence authorising him to deal in arms (see paragraph 6 of the K
L
admitted facts). L
M Dealing in arms M
N N
68. I now turn to consider whether the defendant by way of trade
O or business dealt with arms. To "deal in" is defined in the Ordinance as O
meaning:
P P
(a) to manufacture, store, sell, let on hire, part with possession
Q Q
of, supply, import, export, procure, purchase, take on hire, take
R
possession of, transport, repair, test, prove or to offer to do any R
of the foregoing;
S (b) to expose for sale or hire or to have in possession for storage, S
sale, hire, supply, transport, repairing, testing or proving.
T T
U U
V V
20
A A
B B
69. On his own admission both under caution and in the video
C interview the defendant said there were two occasions where he received C
stun guns for a Mr Ho. To take possession of stun guns falls within the
D D
definition of to “deal in”. Further from the finding in the premises of
E empty boxes for Taser X26C stun guns and cartridges, the same E
packaging as the arms and ammunition intercepted by the Customs &
F F
Excise and delivered to the defendant by the police, the only inference to
G draw is that the defendant parted with possession of the stun guns, which G
also falls within the definition of to “deal in”.
H H
By way of trade or business
I I
J 70. As stated earlier the main issue is whether the defendant by J
way of trade or business dealt in arms. There is no guidance from Hong
K K
Kong case law as to what is trade or business in the context of the
L Ordinance. Nor can I find any case law from the United Kingdom where L
there is a similar offence of trading in firearms without being registered
M M
as a firearms dealer (see section 3 of the Firearms Act 1968).
N N
71. Reference to “by way of trade or business” is found in the
O O
Gambling Ordinance, Chapter 148 where section 7 makes it an offence of
P bookmaking for any person who holds out in any manner that he solicits, P
receives, negotiates or settles bets by way of trade or business. Mr Lee in
Q Q
his closing submission also referred to the Gambling Ordinance.
R Specifically Mr Lee refers the court to the decision of the Court of Final R
Appeal in HKSAR v Chu Kam Yiu & others (2002) 5 HKCFAR 591
S S
where Mr Justice Chan PJ said:
T T
U U
V V
21
A A
B “What amounts to a trade or business depends on the B
facts of each case. An important factor is whether it involves the
C C
opportunity of making profit or the risk of incurring loss. Other
D factors include the set-up and the operation in question, the D
nature of the activities, the records kept and equipment used.”
E E
The Shorter Oxford English Dictionary defines “trade” as
F F
the buying or selling or exchange of commodities for profit. “In
G business” is defined as habitually occupied in trade or commerce. G
H H
72. The only direct evidence of how the defendant dealt with the
I stun guns after he received them comes from what he told the police in I
the video interview. In summary the defendant said that in May and
J J
October 2013 he had on behalf of Mr Ho received stun guns from the
K USA. On each occasion at the request of Mr Ho the defendant delivered K
the stun guns to a Mr Chan. Before delivery, again at the request of Mr
L L
Ho, the defendant repacked the stun guns to make them smaller and
M easier for Mr Chan to carry (for the first occasion see counters 183-394; M
658-677; 915-964; and 995-1004; and the second occasion see counters
N N
405-534; 965-972; 1724-1791; and 2619-2640).
O O
73. During the interview the defendant was shown various
P P
documents found during the search of the premises. Admitted in
Q evidence is a schedule of the documents shown to the defendant during Q
the interview (see schedule 2, paragraph 8 of the admitted facts). All the
R R
documentation has not however been produced by the prosecution as part
S of their case. The documentation shown to the defendant but not S
produced is marked P23C-G for identification as part of the video
T T
interview.
U U
V V
22
A A
B B
74. I have carefully considered the content of the video
C interview. I do not find credible the defendant’s account of how he dealt C
with the stun guns after he received them. For example on both occasions
D D
the defendant said he delivered the stun guns to a Mr Chan, not the same
E Mr Chan but a different Mr Chan (see counters 251-264; 455-458 and E
463-466). I do not find credible the defendant was asked to deliver stun
F F
guns to two different Mr Chans, who he was only able to give a general
G description of and did not keep their phone numbers (see counters 264- G
290; 463-482; 513-516; and 915-922).
H H
75. I do not find credible the defendant did not know in advance
I I
that stun guns would be sent to him (see counters 205-232; 313-316; 456-
J J
462; 535-538; 943-956 and 2517-2536). I find inherently improbable that
K
stun guns would be sent to the defendant from the USA once let alone K
three times without his prior knowledge and consent the sender thereby
L L
running the risk that the defendant would not accept delivery of the stun
M
guns or that the stun guns would fall into the hands of others, be handed M
over to the police or otherwise disposed of in a way other than intended
N N
by the sender.
O O
76. In the interview the defendant at first said he did not know
P stun guns were illegal (see counters 459-460). Later in the interview the P
defendant said that he had heard from friends that handling stun guns
Q Q
probably seems to be against the law (see counters 707-713 and 956-964).
R Asked why he agreed to deliver the stun guns knowing they were illegal R
the defendant replied that it was his own fault and that on the first
S S
occasion he delivered the stun guns to help a friend (see counters 950-
T 964) and on the second occasion because he was soft-hearted (see T
U U
V V
23
A A
B B
counters 965-972). I do not find credible the defendant would deal with
C stun guns knowing they were illegal simply to help a friend and because C
he was soft-hearted.
D D
77. On the first occasion the defendant said he delivered four
E E
stun guns to a Mr Chan (see counters 192-216 and 251-258) and on the
F second occasion probably delivered six stun guns to a Mr Chan (see F
counters 405-440; 455-456; and 483-494). I do not find credible that the
G G
defendant only dealt with ten stun guns. In the premises were 17 empty
H boxes for X26C stun guns indicating the defendant’s dealings with stun H
guns were much more than he told the police.
I I
J 78. That the defendant had more dealings with Taser stun guns is J
also indicated in a fax found in the premises. The fax was shown during
K K
the video interview and marked as P23E for identification. The fax dated
L the 25 March 2013 and entitled “Detailed list of goods delivered from US L
to HK” states that in respect of invoice No.: 85714258673 20 Taser guns,
M M
10 rope bags and 14 knives arrived in Hong Kong on the 25 March 2013.
N The prosecution however do not seek to rely on this document which has N
not been produced as part of their case.
O O
P 79. In the interview when asked about this fax the defendant said P
very obviously this was referring to stun guns (see counters 2513-2516).
Q Q
The defendant variously explained the goods may not have arrived in
R Hong Kong; he did not receive the goods; asked if he did receive the stun R
guns replied, “Yes, probably not, no”; thought they were toy guns; did
S S
not know what Taser guns were; only now came to know this name; and
T was told the cartridges were batteries (see counters 2462-2544). T
U U
V V
24
A A
B B
80. I do not find credible the defendant’s explanations given
C with regard to this fax. The invoice No.: 85714258673 is the same C
number as the tracking number on one of the eight FedEx air waybills
D D
(exhibit P29A) and one of the seven commercial invoices (exhibit P29D)
E both dated the 21 March 2013 and found inside the DHL envelope. The E
finding of these documents indicates the goods were sent to the
F F
defendant. The air waybill states the contents are Gears & Outdoor
G Goods (Bags & holsters). G
H 81. Further the date and invoice number are found on page three H
of the three page handwritten document (exhibit P30), which was also
I I
found in the DHL envelope. The defendant admits writing this record
J J
(see counters 2186-2226). The record is said to be a list of cargo
K
delivered by the defendant to Mr Ho together with details of all expenses. K
This record also indicates the goods were sent to the defendant however
L L
the content of the cargo is not specified in respect of invoice number
M
85714258673 and the defendant said this record does not contain M
transactions involving stun guns (see counters 2292-2297).
N N
82. Having found the defendant’s account of how he dealt with
O O
the stun guns after he received them not credible leaves only the finding
P of the empty boxes in the premises together with the documentation, P
exhibits P29 & P30. I find this evidence insufficient for the court to draw
Q Q
the inference that the defendant’s dealings in stun guns was by way of
R trade or business. I find the prosecution have failed to prove the R
defendant by way of trade or business dealt with arms. The defendant is
S S
acquitted of charges 1 & 2.
T (D. J. DUFTON) T
District Judge
U U
V V